News media – a shifting legal landscape

The laws governing the publication of news media in the UK are racing to keep up with our ever-evolving technology, forcing the industry to innovate at both a commercial and legal level.Over the last decade, digitisation has broken down barriers to entry, fundamentally changing the way that news is produced and consumed. Social media and advancements in mobile technology have allowed producers of content to by-pass traditional media channels, accelerating speed of access to more content than ever before. Meanwhile technology platforms monopolise the attention economy and digital advertising market. These changes to content distribution and consumer behaviour, which have increased access to news for billions of users, have resulted in rapid innovation by legacy media outlets who have transformed their existing business models and revenue streams. With those rapid changes in mind, what are the key legal changes that news publishers should be looking out for in 2021?In the wake of a Brexit deal, we now know that the Copyright Directive will not be implemented in the UK, meaning that publishers won’t be able to rely on the rights that would have been afforded to them by Article 15. Additionally, the government’s full response to the Online Harms White Paper on 15 December 2020 indicated that the new Online Safety Bill will enshrine, in law, a duty on companies to remove harmful content from their platforms or risk facing significant fines.We address below what this means for news publishers and the changes they may need to make to their services this year.Copyright Directive – Article 15The Copyright Directive[1] was adopted by the European Council on 6 June 2019, with a deadline for Member States to transpose it into domestic legislation by 7 June 2021. The UK Government has taken a conflicting stance over the course of the last year as to whether, in light of Brexit, it would implement the Copyright Directive, having cast a key vote to approve its implementation as part of the European Parliament in March 2019. The latest position is that after the Brexit transition period, which ended on 31 December 2020, the Copyright Directive has not been, and will not be transposed into UK law.The significance of this for news media organisations is the loss of protection afforded by the Article 15 press publication right. Article 15, sometimes known as the “link tax”, grants press publishers in the EU a two-year right to enforce copyright (the reproduction right and the right of communication to the public) for the online use of their content by information society service providers. The aim was to give press publishers additional ammunition against third party news aggregators or social media sites that share their news content online. The intention was to protect a good quality, free and pluralist press by allowing publishers to recognise a return on investment and monetise their rights. However, as Article 15 specifically affords protection to press publishers established in a European Member State, there is no such protection for UK publishers whose content is shared by news aggregators in the EU or the UK.In Europe some Member States have already transposed the Copyright Directive into law, meaning domestic publishers are already benefiting from these rights. In France for example, Google recently lost an appeal against an injunction granted by the competition watchdog, on behalf of a publishing association, in a dispute regarding payment for reuse of snippets of the association’s content on Google News. This is a landmark decision, the result of which has brought Google to the table and forced it to negotiate the terms of reusing this type of content. Whilst it’s not quite David and Goliath, the case sets an optimistic precedent for press publishers in Europe and demonstrates an appetite for policymakers to challenge the dominance of “Big Tech”. Outside of Europe Google is also facing resistance from the Australian government, which proposes to introduce its own regime to make tech platforms pay for reuse of media content. The law will only be applicable to Google and Facebook for now. However, Google has already responded aggressively by threatening to withdraw its search engine services from Australia altogether[2].Elsewhere Google continues to reshape the news media industry as we know it. Last October, the company unveiled a $1 billion commitment to invest in partnerships with news publishers as part of its News Showcase initiative[3]. This will undoubtedly provide the industry with opportunities. However, it also presents an entirely different ball game with Google setting the rules. How News Showcase will interact with domestic copyright regimes remains to be seen, including whether the financial incentives to participate will be enough to constitute payment for reuse of content under Article 15. Beyond that, the question becomes one more of economics than law. As Google saturates a market of its own creation, with content from hundreds of media partners across the globe, will it be a race to the bottom for the publishers?It is possible that the UK Government may opt to protect the UK’s news media industry by introducing legislation equivalent to the Copyright Directive in future. The Digital, Culture, Media and Sport Committee announced on 15 October 2020 that it was launching an inquiry into the economics of music streaming, an element of which will involve investigating whether the UK needs to implement legislation equivalent to the Copyright Directive, however for now there remains a gap in protection for news publishers in the UK at law. On the regulatory side, the Competition and Markets Authority recently published the advice of its Digital Markets Taskforce (“DMT”)[4]. The DMT’s key recommendations include the development of a regulatory framework to oversee digital companies with “Strategic Market Status”. The move has been celebrated by the Press Publishers Association, who called it “a welcome step towards achieving effective regulation of online platforms to promote and enhance competition, while providing publishers a fair deal.” We expect legislative changes in this area from April this year. In the meantime, the news media industry continues to lobby the Government for a robust IP framework in the wake of Brexit. In the absence of Article 15 equivalent protection in the UK, publishers will need to rely on the more piecemeal approach in order to assert their copyright. This means a more time-intensive approach to enforcement of agreements with individual editorial contributors against third party news aggregators.The Copyright Directive will remain relevant to UK media businesses who have a presence in the EU. However, this divergence in the legal landscape will present challenges as both domestic and EU copyright regimes will need to be considered in parallel.Online Harms BillThe Online Harms Bill was first proposed in April 2019 and “puts forward ambitious plans for a new system of accountability and oversight for tech companies, moving far beyond self-regulation”[5]. The Bill proposes to impose a legal duty of care between tech platforms and their users, which will oblige companies to remove harmful content from their sites or risk facing sanctions. Consultation on the White Paper concluded on 15 December 2020 and includes interim codes of practice. The new rules will be enforced independently by Ofcom, as the regulator, who will have the power to levy substantial fines: up to a maximum of £18 million or 10% of global turnover. The Department for Culture, Media and Sport is also exploring the idea of extending this to include criminal liability for senior individuals who commit a major breach of the statutory duty of care.The legislation will principally aim to protect children from harmful content and tackle illegality online, as well as combatting the spread of misinformation (driven by a spike in “fake news” most recently catalysed by the COVID-19 pandemic). The legislation will also seek to define what “harmful content” actually means, with the definition expected to be relatively broad in scope and extend beyond that which is simply illegal. All companies within scope of the regulatory framework will also need to demonstrate that they are fulfilling their duty of care by making sure that their terms and conditions of use are sufficiently clear and accessible (including to children and vulnerable adults). The move is celebrated by UK Government as being key to keeping users safe whilst also promoting innovation within digital markets, however news media publishers have concerns that this may come at a cost to the freedom of the press.The UK Government has provided assurances that the new legislation will “protect freedom of expression and uphold media freedom”[6]. For news media organisations, industry bodies have successfully lobbied for journalistic content and reader comments to be exempt under the new regime on the basis that it may censor editorial content or reader comments, and that it poses a threat to freedom of expression more generally. However news publishers have concerns over how such an exemption will be framed in law. In particular, there are calls to ensure (i) that all published content is captured within any defined exemption (including both editorial content and reader comments), and (ii) that such an exemption extends to content published across all platforms, as opposed to comments on the publisher’s website only. This means that the scope of the Bill would effectively be limited to social media platforms. However the proposed carve-out does not currently cover journalists referencing their own articles on social media, or soliciting responses to questions on potentially distressing topics online for research purposes, both of which would be caught by the legislation.If the above seems messy, it’s because it is. To avoid over-criminalisation and overly restricting public discourse, the news industry is arguing for a blanket exemption for news media content under the Bill. If successful this would mean that all news media content would be exempt. So far the Government has made all the right noises, meaning that some form of exemption is highly likely (which extends to news content shared on social media platforms). However, the detail in the draft legislation will be key to ensuring that publishers receive the legal dispensation that they need.The Government has committed to focusing its enforcement efforts on the biggest and highest risk online companies. However, this has prompted concerns as to whether this will serve to encourage the indiscriminate removal of content (which may or may not be harmful) by big tech companies, via automated algorithms, in order to avoid being penalised – something which could result in the removal of legitimate posts from online platforms. Whether the tension between protecting users against online harms and upholding media freedoms presents a false dichotomy, nevertheless, remains to be seen.What all of this means is that publishers need to be proactive in order to protect their content on all fronts. The effective monetisation and syndication of content is key to maintaining viability in an increasingly competitive market, where the dominance of Big Tech is driving rapid legal and commercial change. It is clear that the protection of legacy media outlets is on the political agenda but the current legal regime lacks teeth. As the power of tech platforms to distribute news gathers momentum, so too does the pressure to regulate them. A blanket exemption for news media in law is key. However, this is not the end of the story. Upholding this exemption in real terms will be challenging if tech platforms take matters into their own hands and to start to self-regulate, perhaps by auto-filtering, in order to avoid penalisation. We will be watching with interest as the debate develops.If you would like more information about any of the issues discussed in the above 'a shifting legal landscape article', please contact Iona Silverman from our Intellectual Property & Media team at Freeths.

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[1] Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC

[2] https://www.bbc.co.uk/news/world-australia-55760673

[3] https://blog.google/outreach-initiatives/google-news-initiative/google-news-showcase/

[4] https://www.gov.uk/government/news/cma-advises-government-on-new-regulatory-regime-for-tech-giants

[5] https://www.gov.uk/government/consultations/online-harms-white-paper/online-harms-white-paper

[6]https://www.gov.uk/government/consultations/online-harms-white-paper/outcome/online-harms-white-paper-full-government-response